ALJDEC decisions subject to certification as final

2021A-04708-CHC-ROC · Registrar of Contractors · 2022-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bonnie Sue Carroll ,

COMPLAINANT,

v.

Wall 2 Wall Painting LLC

License No. ROC 225260,

RESPONDENT.

No. 2021A-04708-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2022 at 1:00 PM

APPEARANCES: Bonnie Carroll (“Complainant”) appeared on her own behalf with John Carroll as a witness. Jack Grimm appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Gary Festa appeared on behalf of Wall 2 Wall Painting LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On October 05, 2006, the Registrar issued License No. 225260 Specialty Dual CR-34 Painting and Wall Covering contracting to Respondent. The license is currently active and renewed through October 31, 2023. Gary Thomas Festa is the Qualifying Party and Member on the license. Respondent’s address of record for the license is 231 N. Robson Apt. #17, Mesa, AZ 85201. Respondent has an active $6,750.00 surety bond on the licensed issued by Merchants Bonding Company effective March 16, 2018. There is no prior discipline noted for the license, save one open complaint which is presumably related to this matter.

Complainant owns residential property located at 7221 S. 73rd Dr. Laveen AZ 85339.

On or about August 23, 2021, Complainant and Respondent entered into a $2,100.00 for kitchen cabinet refinishing, including painting. Complainant paid for the project in full; tendering $525.00 to Respondent on August 11, 2021, and another $1,575.00 to Respondent on August 25, 2021. The project commenced on August 23, 2021, and was completed on August 25, 2021.

On or about September 21, 2021, the Registrar received a 22-item complaint from Complainant against Respondent’s License No. 225260 alleging poor workmanship of their project. Attached, Complainant provided proof of payment and a short narrative explanation that Respondent had not provided her with a contract for the project. The Registrar designated it Complaint No. 2021-04708 and assigned to Jack Grimm (“Investigator Grimm”) for investigation.

On October 07, 2021, Investigator Grimm issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on October 20, 2021, at 10:00 a.m.

On October 20, 2021, Investigator Grimm conducted a review of the communications exchanged between the parties regarding the scope of work, and inspected the work that had been performed on the project to date. He also took 44 photographs of the project site. When he was finished, Investigator Grimm drafted his Inspection Notes. Ultimately, Investigator Grimm substantiated 8 of 22 complaint items. Specifically, Investigator Grimm verified complaint items 3, 5, 8-9, 13, 17, 19, and 21. Investigator Grimm concluded that Respondent’s cabinet painting failed to meet the Registrar’s minimum workmanship standards.

On October 26, 2021, Investigator Grimm issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1158(A) for Respondent’s failure to include all nine (9) required minimum elements in his contracts, including his contract with Complainant.

On August 14, 2020, Investigator Grimm issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated a majority of Complainant’s workmanship allegations. Respondent was put on notice that it had until 5:00 p.m. on November 16, 2021, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).

On November 29, 2021, Investigator Grimm issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 02, 2021, at 1:30 p.m.

On December 02, 2021, Investigator Grimm inspected the corrective work that had been performed on the project and took 21 photographs. When he was finished, Investigator Grimm drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Grimm determined that Respondent had not performed corrective work necessary to satisfactorily remediate complaint items 3, 5, 13, 17, 19, and 21 as identified in the Directive.

On December 02, 2021, Investigator Grimm forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On December 09, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until December 24, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On December 21, 2021, the Registrar received Respondent’s Answer whereby Mr. Festa made a simple request for hearing.

On December 29, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on February 23, 2022. Per the January 12, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf, called Investigator Grimm and John Carroll as witnesses, and submitted Exhibit 2 into the record. Gary Festa testified on behalf of Respondent. The Registrar’s agency file was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant reached out to Respondent regarding her kitchen cabinet project, because Respondent had performed work on a neighbor’s similar project that Complainant admired.

Respondent did not provide Complainant with a formal contract for the underlying project. Instead, the terms of the project were memorialized through text messages between Complainant and Mr. Festa as follows:

Respondent agreed to paint all of Complainant’s kitchen cabinets, including their insides, for a total contract price of $2,100.00; with 25% due as a down payment, and the remaining balance due upon completion.

The project was set to take place over the course of three (3) days, beginning on August 23, 2021.

During the Directive’s compliance period, Mr. Festa came to the project site on one occasion – on November 15, 2021, the day before the deadline expired.

Mr. Festa did not contact Complainant to schedule corrective work until November 14, 2021.

On that day, Mr. Festa instructed Complainant to go over “spots” she was dissatisfied with a using a “foam roller.” Per Respondent, he used one (1) coat of primer and three (3) coats of paint on Complainant’s cabinets, but because they were composed of compressed wood, the material was “soaking up” the white color of the paint.

Mr. Festa did not receive Investigator Grimm’s Compliance Jobsite Inspection Notification Letter, which is why he failed to attend.

In closing Respondent argued that he had a “good report” with Mr. Carroll and that he had not taken any issue with Mr. Festa’s work as Complainant had. Respondent opined that Complainant’s complaint was an anomaly in a career spanning over a decade without any other noted complaints or disciplinary action by the Registrar.

Complainant declined to provide a closing argument.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in the case at bar are not in dispute.

It is undisputed that the parties had a $2,100.00 kitchen cabinet painting contract of which Complainant paid the price in full. It is also undisputed that the work Respondent performed did not satisfy the minimum standards set for workmanship by the Registrar, and that Respondent failed to provide a written contract to Complainant for the project. It is further undisputed that Respondent was required to timely perform corrective work and remediate workmanship deficiencies on the project identified in the Registrar’s Directive by November 16, 2021, and that Respondent failed to timely comply.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s insufficient performance on this project. Respondent’s assertion that the corrective work he managed to complete on November 15, 2021, was “good enough” does not effectively rebut more credible evidence in the record to the contrary. Furthermore, Respondent’s arguments regarding the longevity of his business, or lack of complaints during that time, is completely irrelevant to this matter.

Therefore, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Wall 2 Wall Painting LLC, ROC License No. 225260, be suspended for two (2) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, March 10, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors